A Sergey update: we misunderstood him

Sergey Brin has posted a response to the Guardian’s interview with him. (He posted it on Google Plus which means I have been on Google Plus twice now! Watch out Facebook!)

One clarification is particularly relevant to my previous comments:

I became an entrepreneur during the 90’s, the boom time of what you might now call Web 1.0. Yahoo created a directory of all the sites they could find without asking anyone for permission.

Today, starting such a service would entail navigating a number of new tollbooths and gatekeepers.

This is the most explicit I have seen Google be about one of their fundamental disagreements with things like copyright. He objects to the need for permission. He sees the need to get permission from someone else as fundamentally at odds with entrepreneurialism. It’s easy to see how that view is incompatible with the whole idea of copyright.

It’s also a clear enunciation of why Google is in a poor position to lead this debate. It’s obvious that a business which depends on the agreement of someone else, particularly in the IP field, would be advantaged if they could just do as they pleased regardless of whether that person agreed or not. Many businesses would love to be freed from regulatory and commercial restrictions, simply be able to ignore the rights and interests of others when they are inconvenient. That doesn’t make it right, though, even when the restriction makes it harder or even impossible to do certain kinds of business and “innovate” in certain ways.

The “tollbooths” and “gateways” which Sergey objects to have, in relation to copyright anyway, always been there. The law has never said it’s OK to just copy, keep and exploit anything you want, regardless of whether you have permission. If, as a consequence of the legal reality being ignored, some people have set up systems which technically restrict what the law has always restricted anyway that’s more likely a response to their interests being damaged than a fundamental shift in anything. Reality, you could say, is finally biting.

In truth, unfair advantages lead to unfair outcomes. Google is a massive and mind-bogglingly rich company, run by some of the most mind-bogglingly rich young scamps in the world, and the largest and most powerful aggregator of content and data ever seen. It has become so by exploiting content created by others. Even if this has by-and-large been done with tacit or “implied” permission, the idea that it doesn’t require permission in law or in reality, has never been true. So when some people decide that they don’t like it anymore, and prevent their content and data from being accessed by Google, it might not suit Google but it also is fundamentally wrong to present it as a threat to anything other than Google’s commercial interests.

Permission is the bedrock of copyright and so of professional creativity. When Google argues that their service and others should be exempt from the need for permission, they are arguing not for the interests of society at large, or entrepreneurs, or innovation, or free speech. They’re arguing for the interests of their shareholders.

Google should stop whinging and instead go out there and do some deals which work for their suppliers as well as themselves.

Policy makers, in the meantime, should take note.

Comments

6 Comments so far. Leave a comment below.
  1. M,

    There is a balance against the permission culture called fair use, that I’m fairly confident things like search engines fall under. Obviously fair use is a contentious issue, as is the whole of copyright really.

    • Well, yes, that’s true in the States. I’m not an american nor a lawyer (so decidedly not an american lawyer) but it always seems to me that fair use is annoyingly vague and mainly defined by case law, so it’s hard to know how reliable it is in a given circumstance. And, of course, it’s only american law and until Sergey gets the single world government he craves it will probably stay that way. But you’re right in principle – other jurisdictions have exceptions to copyright – usually better defined than fair use is – and there are always some things you can do without permission. That’s not an argument against permission, though, and exceptions should be carefully considered so that they don’t have the effect of handing anybody a massive economic advantage. In my view it is perverse to claim or allow an exception for “search” without first defining what you mean by “search”. Google use their database for much more than just helping people locate content and the limits on their use seems to be mostly self-defined. In any case permanently storing copies of content for purposes which go beyond what is needed for search seems unreasonable and unnecessary. And Sergey doesn’t seem to be arguing for a loose interpretation of fair use, he seems to be arguing against the need for innovators to get permission per se.

      • M,

        I think what is missing from these tech vs “content” debates is the fact that software is under copyright. The product of the tech industry is primarly software (often exposed as a service). Without copyright, the tech industry would have a lot of business problems.

        Google is entirely 100% a company based on “IP”. They aren’t really in a busines of tangible products. If copyright didn’t exist Google would have a lot of problems maintaining their business.

        A loose interpretation of fair use is beneficial to much of the technology industry, not just Google. Complete abolition of copyright is not beneficial.

        The difference between tech and “content”, which drives the copyright debate between these groups, is the difference between mass media and social media.

      • This is quite right but software is different in nature from “content”. Software is IP but it is also secret. Even if the software itself is copied (and in the case of software used internally by companies like Google, rather than sold or made available commercially, this is extremely unlikely), the source code is most often extremely well protected and not available even to purchasers of the software. Even when you do purchase software it is often also protected by a form of DRM to prevent the software being used other than in compliance with the licence which was purchased. Exceptions to this are usually a consequence of the creator’s choice to make their software open source, for example – the software equivalent, in a way, of a Creative Commons licence, or piracy. Sometimes software is also protected by patents which extend protection beyond the code itself and into the idea underlying it.

        So software depends on IP, for sure, but also benefits from other protections. For Google’s service to exist and provide a service to users, it does not have to make copies of its underlying software available in any form. Sometimes it chooses to (Android – or some of it anyway) and sometimes does not. However it is not the case for Google or the software business in general that in order to carry on their business they need to publish their source code; users only have whatever access and functionality which the software creator chooses to give them. Imagine for a moment that all software source code had to be published for some reason. Even if it were still protected by copyright, how different do you think the business would be in terms of the role that piracy and infringement has on the industry overall? Would the legal protections mitigate the commercial risk, and how easily would they be enforced?

        That is kind of the situation that the content business is in. You can’t draw a distinction between the content itself and its output – it is its own source code if you like. So you’re right that an abolition of copyright would cause problems for Google (mainly, in my view, a collapse in supply of some of their most valuable raw materials) but they would not be analagous to the problems which the content industry faces even now. Google uses secrecy at least as much as IP law to protect its inner workings, business processes, algorithms and software. But, actually, I have never heard Google argue for an abolition of copyright… they say more often that it doesn’t (or shouldn’t) apply to their specific activities relating to content. Their understandable priority seems to be ensuring that copyright doesn’t create cost or barriers for Google.

        So if the tech industry wants to contemplate what a world without copyright would look like, they can see a clue in what the current world looks like for content owners. But it’s also true that they have many more options available when it comes to protecting their code and interests.

        And I don’t know what you mean by your last sentence so I won’t comment on it.

      • M,

        Listen I think we agree on 99% of everything with the problems facing the content industry. The problem is not copyright as a concept, it’s not the “idea” of making money from content. The problem is putting into practice. I am not convinced that the Internet is compatable with big media’s business model, which is the business model of mass media. My last sentence touched on that.

        Social media is when media is created by the same people that use that media. Your blog is social media. I’m not simply a consumer of your blog, I add content to it in the form of comments. This relationship is called being a “prosumer”. This is different from mass media, which seperates consumers from producers much more strongly. “Artists” and “fans”, etc.

        My contention is social media is the future, and that the age of hundred million dollar blockbuster movies is going to be a historical thing. Mass media will still exist, but more underground and with less money.

        Not just because of piracy (also piracy is helping), but because of social media itself. People simply spend less time consuming mass media. Every hour on Facebook or reading a blog is an hour less watching TV. Facebook, Reddit these are new distractions that consumes a limited resource, the individual’s free time. As technology improves, especially on the content creation side of things, I expect social media to become even bigger part of our lives.

        This just an evolution of content. Just like “video” killed the radio star. And there is going to be people who hate this. There are people who hate the invention of the TV and mass media in general too, so there will be an minor anti-Internet culture just like there is an anti-TV culture. There is merit to it, but I’m a technologist personally I like the progression of the Internet, as disruptive as it may be.

  2. You’re right, we’re agreeing on a lot. I don’t hold any particular torch for big media, I think the nature of the media reflects the nature of the market they are operating in. What I am most concerned about, I suppose, is the size of the media market overall rather than who wins or loses within it. For sure, as technology progresses we will see some “big media” fail or down-size dramatically. Other will not. And new big players will spring up. But in a world where the opportunity the internet should promise – to reduce barriers to entry and open opportunities to all sorts of new players – is frustrated because no matter how much consumption grows, the market contracts, we have a problem. If we fix the market, the winners and losers will sort themselves out.

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